Ohio Supreme Court, 1998

State ex rel. Kirk v. Burcham

Ohio Supreme Court · Decided July 29, 1998 · Cook, Douglas, Moyer, Pfeifer, Resnick, Stratton, Sweeney

82 Ohio St. 3d 407; 696 N.E.2d 582

Cases that cite this one

20 later published cases cite this decision.

State ex rel. United Automobile, Aerospace & Agricultural Implement Workers of America v. Ohio Bureau of Workers' Compensation (Ohio 2006)
State ex rel. Ames v. Portage Cty. Bd. of Commrs. (Ohio Ct. App. 2022)
State ex rel. Kushlak v. Cleveland Animal Protective League (Ohio Ct. App. 2024)
State ex rel. Ames v. Portage Cty. Bd. of Commrs. (Ohio 2023)
State ex rel. Dodson v. Held Phipps (Ohio Ct. App. 2023)
State ex rel. Pine Creek Properties v. Turner (Ohio Ct. App. 2023)
State ex rel. Ohio Stands Up!, Inc. v. DeWine (Slip Opinion) (Ohio 2021)
State ex rel. Mcie v. Forsthoefel (Ohio Ct. App. 2021)
State ex rel. Lehmann v. Kate (Ohio Ct. App. 2020)
Cincinnati Golf Management, Inc. v. Testa (Ohio 2012)
State Ex Rel. American Civil Liberties Union of Ohio, Inc. v. Cuyahoga County Board of Commissioners (Ohio 2011)
State ex rel. Toledo Blade Co. v. Seneca County Board of Commissioners (Ohio 2008)
State ex rel. Leslie v. Ohio Housing Finance Agency (Ohio 2005)
State ex rel. Consumer News Serv., Inc. v. Worthington City Bd. of Edn. (Ohio 2002)
State Ex Rel. Collins v. Gallagher, Unpublished Decision (11-4-2005) (Ohio Ct. App. 2005)
State Ex Rel. Gms Mgmt. v. Wellington, Unpublished Decision (1-7-2004) (Ohio Ct. App. 2004)
State Ex Rel. Edighoffer v. Lisotto, Unpublished Decision (3-26-2003) (Ohio Ct. App. 2003)
State Ex Rel. Robinson v. McKay, Unpublished Decision (02-15-2002) (Ohio Ct. App. 2002)
State ex rel. Consumer News Services, Inc. v. Worthington City Board of Education (Ohio 2002)
State ex rel. Kirk v. Burcham (Ohio 1998)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Per Curiam.

Appellants assert in their propositions of law that the court of appeals erred by denying the writ of mandamus. They initially contend that the court of appeals erred in holding that the case was moot.

But insofar as appellants sought a writ of mandamus to compel Burcham to journalize the divorce decree, the case was rendered moot by Burcham’s January 10, 1997 journalization of the decree. A writ of mandamus will not issue to compel an act already performed. State ex rel. Jerninghan v. Cuyahoga Cty. Court of Common Pleas (1996), 74 Ohio St.3d 278, 279, 658 N.E.2d 723, 724.

Despite appellants’ contentions that their mandamus claim is not moot due to issues of Kirk’s lost child support caused by Burcham’s delay in journalizing the divorce decree and the court of appeals’ assessment of costs against SEOLS, appellants now concede that this appeal was not filed based on these contentions.1

*409Instead, appellants claim that their appeal was filed in order to challenge Burcham’s continued adherence to Loc.R. 4A, which they assert is unconstitutional. See fn. 1. A writ of mandamus, however, will not issue if there is an adequate remedy in the ordinary course of law. State ex rel. Walker v. Lancaster City School Dist. Bd. of Edn. (1997), 79 Ohio St.3d 216, 218, 680 N.E.2d 993, 995; R.C. 2731.05. Appellants have an adequate remedy in the ordinary course of law by declaratory judgment to challenge the constitutionality of Loc.R. 4A.

In addition, the court of appeals also lacks jurisdiction in declaratory judgment, which appears to be appellants’ true objective, Wright v. Ghee (1996), 74 Ohio St.3d 465, 466, 659 N.E.2d 1261, 1262, and a writ of mandamus will not issue to compel the general observance of laws in the future. State ex rel. Findlay Publishing Co. v. Hancock Cty. Bd. of Commrs. (1997), 80 Ohio St.3d 134, 135, 684 N.E.2d 1222, 1223, fn. 1.

Further, because of the availability of declaratory judgment to address the constitutionality of Loc.R. 4A, appellants’ claim would not necessarily evade review. See State ex rel. Bruni v. Leonard (1997), 80 Ohio St.3d 475, 476, 687 N.E.2d 441, 442 (Appeal was rendered moot because issues were not capable of repetition yet evading review.).

Based on the foregoing, the court of appeals properly denied the writ.2 Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.

. In their reply brief, appellants state:

“Similarly, ** * * appellants’ merit brief pointed out that a live controversy remains because of Mr. Burcham’s continued adherence to his policy of refusing to file and journalize decrees unless all court costs have been paid or a specific order of journalization is obtained under Local Rule 4(A). * * * The lower court’s decision could not have indicated more clearly that appellee’s legal duty is to file and journalize judgment entries on presentment to him, irrespective of whether all court *409costs have been paid. Had appellee taken the opportunity graciously offered him by the Fourth District, this appeal would never have been filed.” (Emphasis added.)

While appellants misconstrued the court of appeals’ holding, which did not expressly address whether Burcham had a duty to journalize the divorce decree even if the requirements of Loc.R. 4A had not been satisfied, their argument indicates that no appeal would have been filed if Burcham had decided to ignore Loc.R. 4A in the future. Kirk also has or had an adequate legal remedy by motion in her divorce case to recover additional support.

. This conclusion moots appellants’ claim that the court of appeals erred in holding that SEOLS lacked standing to seek the requested extraordinary relief in mandamus. Even if SEOLS had standing, it was not entitled to the writ to compel Burcham to journalize divorce decrees in the future because it had an adequate legal remedy by way of declaratory judgment. '•

Case-law data current through December 31, 2025. Source: CourtListener bulk data.